Transfer Tax and Ground Leases

The Illinois Real Estate Transfer Tax Law, 35 ILCS 200/31-10 provides that the tax is imposed “on the privilege of transferring a beneficial interest in real property located in Illinois...”

Section 31-5 (2) defines "beneficial interest as "the lessee interest in a ground lease (including any interest of the lessee in the related improvements) that provides for a term of 30 or more years when all options to renew or extend are included, whether or not any portion of the term has expired."

Reading these provisions together the department concludes that the tax applies to the transfer of a ground lease - not to the issuance or creation of a ground lease.

The department has not found any indication in the legislative history of the law of any intention to expand the scope of the transfer tax to include lease payments. This interpretation makes the law straightforward and easy to administer. The tax rate is applied to the consideration paid by the new lessee to the prior lessee.

Based on the reasoning stated above, the department advises that the Illinois Real Estate Transfer Tax does not apply to the issuance or creation of ground leases.